Environmental Crimes Handbook 2010

Paula T. Dow Attorney General Stephen Taylor, Director Division of Criminal Justice

A Guide for Law Enforcement Personnel

The Division of Criminal Justice Environmental Crimes, has developed this manual so that law enforcement officers in New Jersey will be able to have quick, ready access to the State's environmental criminal statutes. The manual outlines the criminal provisions for: 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) 12) 13) 14) 15) 16) Water Pollution Hazardous Waste Regulated Medical Waste Solid Waste Air Pollution Public Safety Coastal Area Facility Review Act Waterfront Development Act Flood Hazard Area Control Act Freshwater Wetlands Protection Act Water Supply Management Act Pesticide Control Act of 1971 Safe Drinking Water Act Endangered and NonGame Species Conservation Act Safe Dam Act Wetlands Act of 1970

The Division of Criminal Justice Environmental Crimes hopes that this manual will assist you in your efforts to respond to potential environmental crimes in your jurisdiction. As with any crime scene, the patrol officers primary duty is to protect the scene. You should carefully note what you observe at an environmental crime scene, just as you would with any other crime scene - including taking photographs. The techniques used in the processing of an environmental crime scene are similar to those used in traditional crimes, with one very important exception: DO NOT TRY TO HANDLE POTENTIALLY HAZARDOUS MATERIALS OR UNKNOWN SUBSTANCES WITHOUT HAVING THE PROPER TRAINING. IF YOU ENCOUNTER POTENTIALLY HAZARDOUS MATERIALS OR UNKNOWN SUBSTANCES, CONTACT THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION (24 HR. HOTLINE 1-877-WARNDEP) OR YOUR LOCAL COUNTY HAZ MAT. IF YOU SUSPECT A CRIMINAL VIOLATION, CONTACT YOUR COUNTY PROSECUTORS OFFICE OR THE NEW JERSEY DIVISION OF CRIMINAL JUSTICE ENVIRONMENTAL CRIMES (609) 984-4470

Edward R. Bonanno, SDAG Environm ental Crim es

Jeffrey Gross, Lieutenant Environm ental Crim es

1.

CLEAN WATER ENFORCEMENT ACT N.J.S.A. 58:10A-1 et seq. Material Elements 58:10A-10f(1) violates this act,1 and causes a significant adverse environmental effect Culpability Degree

knowingly purposely recklessly

second [$25,000 to $250,000 fine per day of violation]

58:10A-10f(4) violates an effluent limitation or other condition of a permit, or discharges without a permit, fine and knows that he thereby places another person in imminent danger of death or serious bodily injury

purposely knowingly

first [$50,000 to $250,000 10-20 years imprisonment]

[for corp., $200,000 to $1,000,000 fine]

N.J.S.A. 58:10A-6a & b provide: It shall be unlawful for any person to: - discharge any pollutant, except in conformity with a valid New Jersey Pollution Discharge Elimination System (NJPDES) permit that has been issued by the NJDEP or valid permit issued by the USEPA. - build, install, modify, or operate any facility for the collection, treatment or discharge of any pollutant except after approval by the NJDEP.

It should be noted that under N.J.S.A. 58:10A-6a, it is a crime to discharge pollutants into surface waters, underground waters, or sewer systems without a NJDEP permit [or in case of sewers, municipal utility authority permit] or in violation of the requirements of such a permit.

Material Elements 58:10A-10f(2) violates this act including: making any false statement, representation or certification in any application, record or document filed or required to be maintained under this Act falsifying, tampering with or rendering inaccurate any monitoring device or method required to be maintained pursuant to this Act failing to submit a monitoring report, or any portion thereof, required pursuant to this Act 58:10A-10f(3) violates any portion of this Act

Culpability

Degree

purposely knowingly recklessly

third [$5000 to $75,000 per day of violation]

negligently

fourth [$5000 to $50,000 per day of violation]

58:10A-49a dumps material (defined at N.J.S.A. 58:10A-48) into the ocean waters within the jurisdiction of this state or into the waters outside the jurisdiction of this state, which material enters the ocean waters within the jurisdiction of this State

intentionally [purposely]

third

2.

HAZARDOUS WASTE/HAZARDOUS SUBSTANCES/TOXIC POLLUTANTS A. Causing or Risking Widespread Injury or Damage N.J.S.A. 2C:17-2 and 3 Material Elements 2C:17-2a(1) unlawfully causes an explosion, flood, avalanche, collapse of building, release or abandonment of poison gas, radioactive material or any other harmful or destructive substance 2C:17-2a(2) unlawfully cause a release or abandonment of hazardous waste2 or toxic pollutants3 Culpability Degree

purposely knowingly

second

purposely knowingly OR recklessly

second

third

2C:17-2a(2) unlawfully causes a hazardous discharge4 required to be reported under the New Jersey Spill Compensation and Control Act

purposely knowingly OR recklessly

second

third

Under New Jerseys environmental regulations, in order for material to be subject to hazardous waste regulations, it must be a solid waste [which could be a liquid]. Chemical products that are not wastes are not regulated by the hazardous waste regulations. Under New Jerseys environmental regulations, certain chemical compounds are listed as toxic pollutants; e.g. asbestos, pcbs, dioxins and cyanides. Under New Jerseys environmental statutes and regulations, a hazardous discharge would include a discharge of petroleum products.

Material Elements 2C:17-2b causes widespread injury or damage 2C:17-2c creates the risk of widespread injury or damage (no injury or damage has to occur) 2C:17-3a(1) damages the tangible property of another

Culpability

Degree

recklessly

third

recklessly

fourth

purposely knowingly

damages tangible property of another in the employment of fire, explosives, other dangerous means 2C:17-3a(2) tampers with the property of another so as to endanger person or property

recklessly negligently

third [if purposely causes loss of $2000 or more] fourth [loss above $500 up to $2000]

purposely

recklessly

third [loss over $2000] fourth [loss over $500]

B. Solid Waste Management Act N.J.S.A. 13:1E-1 et seq. Material Elements 13:1E-9g(1) 13:1E-9h(1) transports any hazardous waste to a location which does have authorization from the NJDEP to receive it Culpability knowingly Degree third [$50,000 fine first offense; $100,000 subsequent offense] fourth

recklessly 6

Material Elements 13:1E-9g(2) 13:1E-9h(2) generates and causes or permits to be transported hazardous waste to a location which does not have authorization from the NJDEP to receive it 13:1E-9g(3) 13:1E-9h(3) disposes, treats, stores or transports hazardous waste without authorization from the NJDEP

Culpability knowingly

recklessly knowingly

Degree third [$50,000 fine first offense; $100,000 subsequent offense] fourth third [$50,000 fine first offense; $100,000 subsequent offense] fourth third [$50,000 fine first offense; $100,000 second offense] fourth

recklessly 13:1E-9g(4) & (5) 13:1E-9h(4) & (5) makes any false or misleading statements to any person who prepares any hazardous waste application, label, manifest, record, report, design, or other document required to be submitted to the NJDEP makes any false or misleading statement on any hazardous waste application, label, manifest, record, report, design, or document required to be submitted to NJDEP N.J.S.A. 13:1E-9i generates and causes or permits hazardous waste to be transported, transports, or receives hazardous waste without completing and submitting a hazardous waste manifest to the NJDEP knowingly

recklessly

strict liability

fourth

III. REGULATED MEDICAL WASTE N.J.S.A. 13:1E-48.20-1 et seq. Material Elements 13:1E-48.20g(1) disposes or stores regulated medical waste5 without authorization from either the NJDEP or the New Jersey Department of Health (NJDOH), or does so in violation of this act or any regulation adopted pursuant thereto 13:1E-48.20g(2) & (3) makes any false or misleading statement on any regulated medical waste form or report, required by this act or any regulation adopted pursuant thereto; makes any false or misleading statement to any person who prepares any regulated medical waste form or report, required by this act or any regulation adopted pursuant thereto 13:1E-48.20g(4) fails to properly treat certain types of regulated medical waste designated by the NJDOH, in a prescribed manner Culpability purposely knowingly Degree third [$50,000 first offense; $100,000 second offense]

purposely knowingly

third [$50,000 first offense; $100,000 second offense]

purposely knowingly

third [$50,000 first offense; $100,000 second offense]

Under New Jerseys environmental regulations, regulated medical waste includes the following types of material: cultures and stocks; pathological wastes; human blood and blood products; sharps (used or unused); animal waste, e.g. carcasses or body parts; and isolation wastes.

Material Elements 13:1E-48.20h(1) material elements same as 12:1E-48.20g(1) 13:1E-48.20h(2) & (3) material elements same as 13:1E-48.20g(2) & (3) 14:1E-48.20h(4) material elements same as 13:1E-48.20g(4) 13:1E-28.20i(1) transports any regulated medical waste to any place that does not have authorization from the NJDEP to accept such waste, or does so in violation of this act or any regulation adopted pursuant thereto 13:1E-48.20i(2) transports or receives regulated medical waste without completing and submitting a manifest in accordance with this act or any regulation adopted pursuant thereto 13:1E-48.20j(1) generates regulated medical waste and permits it to be transported to any place that does not have authorization from the NJDEP to accept it, or does so in violation of this act or regulation adopted pursuant thereto

Culpability recklessly

Degree fourth

recklessly negligently

fourth

recklessly

fourth

regardless of intent (strict liability)

fourth

regardless of intent (strict liability)

fourth

purposely knowingly OR recklessly

fourth

13:1E-48.20j(2) violates any other provision of this act, or any regulation adopted pursuant thereto, for which no other criminal penalty has been specifically provided

purposely knowingly OR recklessly

fourth

IV. SOLID WASTE A. N.J.S.A. 13:1E-9 Material Elements 13:1E-9.3 collects or disposes of solid waste in excess of 0.148 cubic yards of solids or 30 gallons of liquids, at any place not authorized by NJDEP to accept solid waste transports or causes to be transported any solid waste, in excess of 0.148 cubic yards of solids or 30 gallons of liquids, to any place not authorized by NJDEP to accept solid waste 13:1E-9.6a (1) & (2)6 disposes of solid waste, or causes or permits the disposal of solid waste in this State OR transports or causes or permits to be transported an amount of at least 1,000 cubic yards of
6

Culpability

Degree

regardless of intent (strict liability)

disorderly persons [fine minimum of $2500 per day first offense; maximum $5,000 per day second offense; maximum $10,000 per day thereafter]

knowingly

second

The quantity of solid waste involved in offenses committed pursuant to one scheme, whether at one or several locations, may be aggregated for determining degree.

10

solids, or at least 10,000 gallons of liquids, for profit or otherwise, at or to a place not authorized by DEP 13:1E-9.6b (1) & (2) disposes of solid waste or causes or permits the disposal of solid waste in this State, OR transports or causes or permits to be transported solid waste in an amount of at least 100 cubic yards of solids, or at least 1,000 gallons of liquids, whether for profit or otherwise, at or to a place not authorized by DEP 13:1E-9.6b (3) & (4) disposes of solid waste, or causes or permits the disposal of solid waste in this State, OR transports or causes or permits to be transported solid waste in an amount of at least 10, but less than 100 cubic yards of solids, or at least 250 but less than 1,000 gallons of liquids, whether for profit or otherwise, at or to a place not authorized by DEP 13:1E-9.6c disposes of solid waste, or causes or permits the disposal of solid waste in this State, OR transports or causes or permits to be transported solid waste in an amount of at least 10 cubic yards, but less than 100 cubic 11

recklessly

third [$50,000 fine]

knowingly

third [$50,000 fine]

recklessly

fourth [$25,000 fine]

yards of solids, or at least 250, but less than 1,000 gallons of liquids, whether for profit or otherwise, at or to a place not authorized by DEP 13:1E-9.6d knowingly or recklessly engages in the collection of solid waste, for profit or otherwise

third [100 cubic yards or more/ 1,000 gallons or more] fourth [10 to 100 cubic yards/ 250 to 1,000 gallons]

B. N.J.S.A. 48:13A-1 et seq. Material Elements 48:13A-12a violates any provision of the Solid Waste Utility Control Act, including: 48:13A-6 engaging in the business of solid waste collection or disposal without a certificate of public convenience and necessity from NJBPU 48:13A-6.1 operating a solid waste landfill without a tariff, or in violation of the conditions of a tariff, from NJBPU 48:13A-6.2 operating a solid waste transfer station without a certificate of public convenience and necessity 12 Culpability Degree

knowingly

fourth [$50,000 fine]

and a tariff from NJBPU 48:13A-12.1 & 12.2 utilize a vehicle registered for solid waste transportation to transport fresh food or fresh food products intended for human consumption, unless the vehicle has been sanitized according to NJDEP regulations

knowingly

third [fine $7500 first offense; $10,000 second offense; $25,000 thereafter]

V. AIR POLLUTION CONTROL ACT N.J.S.A. 26:2C-1 et seq. Material Elements 26:2C-19f(1) violates any part of the Air Pollution Control Act, or any regulation, administrative order, or court order issued pursuant thereto 26:2C-19f(2) violates any condition of an operating permit, or violates any federal air pollution control requirement 26:2C-19f(3) makes any false material statement in any form or report required by an operating permit, OR renders inaccurate any monitoring device or method required by an operating permit 26:2C-19f(4) violates any part of the Air 13 Culpability Degree

purposely

third

purposely OR knowingly

third [fine $10,000 per day]

purposely OR knowingly

third [fine $10,000 per day]

recklessly

fourth

Pollution Control Act, or any regulation, administrative order, or court order issued pursuant thereto

VI. PUBLIC SAFETY Material Elements 2C:17-2c recklessly creates the risk of widespread injury or damage from the reckless handling or storage of hazardous materials OR through the reckless handling or storage of hazardous materials and violates any law, rule or regulation intended to protect public health and safety7 2C:40-18 knowingly violates a law intended to protect the public health and safety or knowingly fails to perform a duty imposed by a law intended to protect the public health and safety and recklessly causes death OR knowingly violates a law intended to protect public health and safety or knowingly fails to perform a duty imposed by law intended to protect public health and safety and recklessly causes
7

Culpability

Degree

third

second

second

third

Widespread injury is defined as serious bodily injury to five or more people or five or more habitations or to a building that would normally have contained 25 or more persons. N.J.S.A. 2C:17-2e

14

serious bodily injury OR knowingly violates a law intended to protect the public health and safety or knowingly fails to perform a duty imposed by a law intended to protect the public health and safety and recklessly causes significant bodily injury

fourth

VII.

COASTAL AREA FACILITY REVIEW ACT N.J.S.A. 13:19-1 et seq. Material Elements 13:19-18(f) violates any provision of this Act, or any rule or regulation adopted pursuant thereto, including the requirement to obtain development permits for residential, commercial, public, or industrial developments in certain coastal areas makes any false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of this Act or any rule or regulation adopted, or permit or order issued pursuant thereto falsifies, tampers with or renders inaccurate, any monitoring device or method required to be maintained pursuant to this Act or any rule or regulation adopted, or permit or order issued pursuant thereto Culpability Degree

purposely knowingly OR recklessly

third [$5,000 to $50,000 per day of violation, and/or imprisonment] third [no more than $50,000 per day of violation, and/or imprisonment]

15

VIII. WATERFRONT DEVELOPMENT ACT N.J.S.A. 12:5-3 et seq. Material Elements 12:5-6(g) violates any provision of this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto, including the requirement to obtain permits for waterfront development upon any navigable water or stream makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto falsifies, tampers with or renders inaccurate, any monitoring device or method required to be maintained pursuant to this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto Culpability Degree

purposely knowingly OR recklessly

third [$5,000 to $50,000 per day and/or imprisonment]

third [not more than $50,000 per day of violation, and/or imprisonment]

IX. FLOOD HAZARD AREA CONTROL ACT N.J.S.A. 58:16A-50 et seq. 58:16A-63(f) violates any provision of this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto, including the restriction that no person shall place or store, or cause to be placed or stored, any containers, such as bottles, bags, cans, and barrels, holding 16

purposely knowingly OR recklessly

third [$5,000 to $50,000 per day and/or imprisonment]

hazardous substances in a 100 year old flood plain makes a false statement, representation or certification in any application, record or other document filed or required to be maintained under any provision of this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto falsifies, tampers with or renders inaccurate, any monitoring device or method required to be maintained pursuant to this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto third [not more than $50,000 per day of violation, and/or imprisonment]

X. FRESHWATER WETLANDS PROTECTION ACT N.J.S.A. 13:9B-1 et seq. Material Elements 13:9B-21(f) violates any provision of this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto, including the requirement that a person or agency of the state proposing to engage in a regulated activity shall apply to the department for a freshwater wetlands permit makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of this Act, or any rule or regulation adopted, or permit or order issued 17 Culpability Degree

purposely knowingly OR recklessly

third [$5,000 to $50,000 per day of violation, and/or imprisonment]

third [not more than $50,000 per day of violation, and/or imprisonment]

pursuant thereto falsifies, tampers with or renders inaccurate, any monitoring device or method required to be maintained pursuant to this Act.

XI. WATER SUPPLY MANAGEMENT ACT N.J.S.A. 58:1A-1 et seq. Material Elements 58:1A-16(f) violates any provision of this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto, including requirements relating to water diversion permits Culpability Degree

purposely knowingly OR recklessly

third [$5,000 to $50,000 per day of violation, and/or imprisonment] third [not more than $50,000 per day of violation, and/or imprisonment]

makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto falsifies, tampers with or renders inaccurate, any monitoring device or method required to be maintained pursuant to this Act or any rule or regulation adopted, or permit or order issued pursuant thereto

18

XII.

PESTICIDE CONTROL ACT OF 1971 N.J.S.A. 13:1F-1 et seq. Material Elements 13:1F-10(f) violates any provision of this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto, including the restriction that no person shall use or apply a pesticide in a manner inconsistent with its labeling makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto falsifies, tampers with or renders inaccurate, any monitoring device or method required to be maintained pursuant to this Act or any rule or regulation adopted, or permit or order issued pursuant thereto Culpability Degree

purposely knowingly OR recklessly

third [$5,000 to $50,000 per day of violation, and/or imprisonment] third [not more than $50,000 per day of violation, and/or imprisonment]

XIII. SAFE DRINKING WATER ACT N.J.S.A. 58:12A-1 et seq. Material Elements 58:12A-10(f) violates any provision of this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto Culpability Degree

purposely knowingly OR recklessly

third [$5,000 to $50,000 per day of violation, and/or

19

imprisonment] makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto falsifies, tampers with or renders inaccurate, any monitoring device or method required to be maintained pursuant to this Act or any rule or regulation adopted, or permit or order issued pursuant thereto third [not more than $50,000 per day of violation, and/or imprisonment]

XIV. ENDANGERED AND NONGAME SPECIES CONSERVATION ACT N.J.S.A. 23:2A-1 et seq. Material Elements 23:2A-10(f) violates any provision of this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto, including the restriction that no person shall take, possess, transport or sell endangered wildlife or regulated nongame species makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto 20 Culpability Degree

purposely knowingly OR recklessly

third [$5,000 to $50,000 per day of violation, and/or imprisonment] third [not more than $50,000 per day of violation, and/or imprisonment]

falsifies, tampers with or renders inaccurate, any monitoring device or method required to be maintained pursuant to this Act or any rule or regulation adopted, or permit or order issued pursuant thereto

XV. SAFE DAM ACT N.J.S.A. 58:4-1 et seq. Material Elements 58:4-1(f) violates any provision of this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto, including the requirement to obtain the DEP Commissioners approval of plans to construct any reservoir or dam makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under the provisions of this Act, or any rule or regulation adopted, or permit or order issued pursuant thereto falsifies, tampers with or renders inaccurate, any monitoring device or method required to be maintained pursuant to the provisions of this Act, or of any rule or regulation adopted, or permit or order issued pursuant thereto
Division of Criminal Justice Environmental Crimes expresses its appreciation to legal intern Jennifer Prizeman and to Lillian Ortiz for their work on the 2008 manual.

Culpability

Degree

purposely knowingly OR recklessly

third [$5,000 to $50,000 per day of violation, and/or imprisonment] third [not more than $50,000 per day of violation, and/or imprisonment]

21